Critical Art Ensemble Defense Fund

The CAE Defense Fund was created in 2005 as a mechanism to raise funds
for legal bills incurred by Dr. Steven Kurtz and Dr. Robert Ferrell in
what its members argued was a politically motivated attack by the
Department of Justice - one which threatened the constitutional and
fundamental rights not only of the two defendants, but also of
everyone, due to legal precedents that would have been set by an
unfavorable outcome.

In response, thousands of people worldwide organized demonstrations and
raised money for the two men's legal defense through fundraisers and a
variety of other grassroots efforts.

The fund was also heavily supported by internationally renowned artists including Sol Lewitt, Barbara Kruger, Cindy Sherman, Mike Kelley, Julie Mehretu, Hans Haacke, Takashi Murakami, Mary Kelly, Martha Rosler, Lorna Simpson, Emily Jacir, Ken Lum, Edward Burtynsky, Jin-Me Yoon, and many others, who donated work to auctions at Paula Cooper Gallery in April 2005, and at A Space Gallery in Toronto in 2007. (See a complete list of donating artists) Other artists such as Chuck Close, Walid Raad, and Ed Ruscha made substantial direct cash contributions. An award-winning independent film about the case directed by Lynn Hershman Leeson (Strange Culture, 2007) brought the case to new audiences and raised thousands of dollars for the two men?s defense through Special Benefit screenings. In all, the Fund raised approximately $350,000.

Drs. Kurtz and Ferrell were indicted for mail and wire fraud in June of 2004. Under the USA PATRIOT Act, the maximum sentence for those charges was increased from five years to twenty years in jail. After an arduous four-year-long struggle, in April of 2008 the indictment against Kurtz was finally dismissed by Federal Judge Richard J. Arcara as "insufficient on its face" - meaning that even if the actions alleged in the indictment (which the judge must accept as 'fact') were true, they would not constitute a crime. Ferrell pleaded guilty to a misdemeanor charge in October 2007 after recurring bouts of cancer and three strokes suffered during the course of the case prevented him from continuing the struggle.

What Is This Case About?

Overview of the legal proceedings against Dr. Steven Kurtz and Dr. Robert Ferell

The Issues

The issues here are fundamental: freedom of speech, freedom of expression and academic freedom. The case is precedent-setting, and will help determine whether anyone exercising their right to free speech can be criminalized merely for their ideas, in fundamental violation of the United States Constitution. The case of Steve Kurtz is one more example of the contemporary abuse of power by the Justice Department, that of continually accusing innocent civilians of "terrorism" and subsequently ruining their lives. The DoJ's tactics recall the McCarthy trials of the nineteen-fifties when powerful members of government also ruined the lives of many innocent citizens. Like that infamous challenge to democracy, this is a "test case" for how far the government can reach, unopposed, into colleges, universities, museums, and even our homes to silence free speech, thought, and inquiry.

The Case

In May 2004, the Joint Terrorism Task Force illegally detained artist and SUNY Buffalo professor Steve Kurtz of Critical Art Ensemble (CAE). They seized documents, computers, and equipment used in four of CAE's projects, including scientific equipment used to test food for the presence of genetically modified organisms. The seized materials included a project that was to have been part of an exhibition and performance at the Massachusetts Museum of Contemporary Art (MASS MoCA) and three other projects that had been safely displayed in museums and galleries throughout Europe and North America. The New York State Commissioner of Public Health determined that the materials seized by the FBI pose no public safety risk. All of the materials are legal and commonly used for scientific education and research activities in universities and high schools, and are universally regarded by scientists as safe. Nevertheless, today Steve Kurtz and Robert Ferrell, Professor of Genetics at the University of Pittsburgh's Graduate School of Public Health, face a possible 20 years in prison in what has become increasingly clear is a politically motivated attempt to silence an artist and scientist whose work is critical of government policy.

Background to the case

Dr. Steven Kurtz is a Professor of Art at SUNY Buffalo and a founding member, with his late wife, Hope, of the internationally acclaimed art and theater collective Critical Art Ensemble (CAE). Over the past decade cultural institutions worldwide have hosted CAE's participatory theater projects that help the general public understand biotechnology and the many issues surrounding it.

In May 2004 the Kurtzes were preparing to present Free Range Grain, a project examining GM agriculture, at the Massachusetts Museum of Contemporary Art (MASS MoCA), when Hope Kurtz died of heart failure. Emergency personnel who responded to Kurtz's 911 call deemed the couple's art suspicious, and called the FBI. The art materials consisted of several petri dishes containing three harmless bacteria cultures, and a mobile lab to test food labeled 'organic' for the presence of genetically modified ingredients. As Kurtz explained, these materials had been safely displayed in museums and galleries throughout Europe and North America with absolutely no risk to the public.

The next day, however, as Kurtz was on his way to the funeral home, he was illegally detained by agents from the FBI and Joint Terrorism Task Force, who informed him he was being investigated for "bioterrorism." At no point during the 22 hours Kurtz was held and questioned did the agents Mirandize him or inform him he could leave. Meanwhile, agents from numerous federal law enforcement agencies - including five regional branches of the FBI, the Joint Terrorism Task Force, Homeland Security, the Department of Defense, and the Buffalo Police, Fire Department, and state Marshall's office - descended on Kurtz's home in Hazmat suits. Cordoning off half a block around his home, they seized his cat, car, computers, manuscripts, books, equipment, and even his wife's body from the county coroner for further analysis. The Erie County Health Department condemned his house as a possible "health risk."

A week later, only after the Commissioner of Public Health for New York State had tested samples from the home and announced there was no public safety threat, was Kurtz allowed to return to his home and to recover his wife's body.

A week later, only after the Commissioner of Public Health for New York State had tested samples from the home and announced there was no public safety threat, was Kurtz allowed to return to his home and to recover his wife's body.

FBI Seizes Art

To this day, the FBI has refused to return most of the tens of thousands of dollars worth of impounded materials, including a book Kurtz was working on. Kurtz and his acclaimed art collective Critical Art Ensemble (CAE) were using the harmless bacteria and materials in several projects:

1) GenTerra used a harmless form of gut E. coli to educate the public about transgenic organisms. When the FBI seized the materials for this project during their raid on Kurtz's home, it had already been exhibited and performed at major museums, galleries, and other public spaces throughout North America and Europe.To watch a video of a GenTerra performance, click here

2) The second project seized by the FBI, Marching Plague, was commissioned by the Arts Catalyst, UK, and received its American premiere in the 2006 Whitney Biennial. Marching Plague used the benign bacteria Bacillus subtilis and Serratia marcescens in an installation, performance and film dedicated to demystifying the issues surrounding germ warfare. To learn more about Marching Plague please see:www.artscatalyst.org/projects/biotech/caeplague.htmlwww.critical-art.net/biotech/

CAE's companion book, Marching Plague: Germ Warfare and Global Public Health (Autonomedia, 2006) had to be reconstructed after the FBI refused to return the manuscript. Read a review of the book here.

3) The 3rd project seized by the FBI, Free Range Grains, allowed participants to test food for the presence of genetically modified organisms. Like GenTerra it had also been performed internationally and was then scheduled for exhibition at the Massachusetts Museum of Contemporary Art (MASS MoCA):www.critical-art.net/biotech

4) The FBI also took the seeds CAE was using in Molecular Invasion, a participatory science-theater work done in cooperation with students from the Corcoran School of Art and Design, at the Corcoran Museum, Washington, DC:www.critical-art.net/biotech/

Artist accused of "bioterrorism"

While most observers assumed the Task Force would realize its initial investigation was a terrible mistake, the feds have instead chosen to press their "case" against Steve Kurtz, Robert Ferrell, and possibly others (see below for more information on the charges). Despite the Public Health Commissioner's conclusion as to the safety of Kurtz's materials, and despite the fact that the FBI's own field and laboratory tests showed they were not harmful to people or the environment - it would actually be impossible to make any sort of weaponized or dangerous germ from them - the U.S. District Attorney continues to waste vast sums of public money on this outrageous and politically motivated persecution.